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COURT ALLOWS ATPU TO DETAIN BUSINESSMAN PENDING ALLEGED TERROR LINKS INVESTIGATIONS.

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BY PHOEBE WANJOHI.

Kahawa West Law Courts has allowed Anti-Terror Police to detain alleged businessman for five days over terror links.

Senior Principal Magistrate Boaz Ombewa allowed police to detain Abdikadir Elmi Robleh pending investigations in relation with terrorism.

Anti-Terror Police through Sergeant Cyrus Ikade told the court that the suspect was arrested on September 17 at 1600hours at Pangani Shopping Center within Starehe Sub-county in Nairobi in connection to financial of terror activities by ATPU officers.

He told the court the suspect is being investigated for several terrorism act including collection of information for the commission of terrorism and membership of a terror group which both attract 50 years jail term.

ATPU added that they believe Robleh has other associates and they are yet to be apprehended and their arrest is vigorously being pursued by security agencies both locally and internationally.

“The activities of the Respondent Abdikadir Robleh and his associate pose a great risk to the National Security of the entire human race in the world and his actions must be fully investigated”, added investigating officer.

According to Ikadi, investigations carried out so far shows that Robleh is the Director of Nadir Integrated Academy and Amud secondary school both believed to be allegedly offering education without being registered by the ministry of education.

Upon preliminary interview, it was noted that Robleh mobile phone have several foreign numbers suspected to belong to terrorists and that they have made several calls to such numbers.

“The investigations requires phone details of all the persons Robleh have been communicating with both in Kenya and outside, their digital print trail (forensic examination of mobile phones) and it is important for him to be detained by the Anti-Terrorism police (A. T. P. U) to enable detailed criminal investigations to be carried out”, Ikade told the court

TRADERS SPARED AGONY OF DOUBLE TAXATION PENDING DETERMINATION OF OMTATAH’S PETITION.

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BY SAM ALFAN.

Traders at Mtito Andei and Mackinnon Road have been spared the agony of double taxation after a Mombasa judge has temporarily three counties from collecting taxes, pending the determination of a case filed by an activist.

Activist Okiya Omtatah moved to court to protect traders in Mackinnon Road Town and those in Mtito Andei Town from double taxation.

The two towns are being claimed by Kwale and Taita Taveta counties for Mackinnon Road Town, while Makueni and Taita Taveta counties feud over Mtito Andei Town.

Environment and Land Court Lucas Naikuni stopped the three county governments from levying taxes, pending the determination of the case.

Omtatah wants the court to appoint Taita Taveta county to be the sole authority of issuing business permits and levying county taxes in Mackinnon Road Town just as its predecessor did before the establishment of county governments in 2013.

He is seeking to.have the county government to deposit all the revenues it so collects into an interest earning bank account opened jointly with the Kwale County Government.

Pending the determination of the case, Omtatah wants the court to appoint the County Government of Taita Taveta as the sole authority issuing business permits and levying county taxes in Mtito Andei Town just as its predecessor did before the establishment of county governments in 2013.

The money, he says should also be deposited in an interest earning bank account opened jointly with the Makueni County Government.

Omtatah argues that the orders are necessary and urgently required to protect innocent traders from being compelled to pay taxes twice by two different counties, resulting to double taxation.

KRA DEALT BLOW AS COURT QUASHES TAX LAW.

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BY SAM ALFAN.

Kenya Revenue Authority has been dealt a blow in it’s bid to raise taxes after a judge declared minimum tax provisions and the minimum tax guidelines unconstitutional.

Justice George Odunga declared that the failure by KRA to comply with the provisions of the statutory Instrument Act renders the minimum Tax guidelines null and of no effect.

Justice Odunga further barred KRA from implementing or enforcing section 12D of income Tax Act by collecting or demanding payments of minimum Tax.

“I have also found that failure by Kenya Revenue Authority to comply with the provisions of the statutory Instruments Act renders the minimum Tax guidelines null and void and of no effect and in the absence of the said guidelines particularly as regards the definition of “Gross Turnover”, section 12D of thr Income Tax Act cannot br operationalised,” said Odunga.

The court had temporarily stopped KRA from collecting the Minimum Tax since April dealing a blow to the taxman, which is struggling to meet revenue targets.

Justice Odunga issued the orders saying the petition by traders from Kajiado and Machakos counties raised weighty questions of law and KRA can “hold its horses” for the time being, as the court navigates the arguments made by parties involved in the case.

“In the results I grant conservatory orders restraining Kenya Revenue Authority whether acting jointly or severally by itself, it’s servants, agents, representatives or otherwise from the implementation, further implementation, administration, application or enforcement of section 12D of the Income Tax Act, chapter 470 of the laws of Kenya as amended by the Tax Laws (Amendment) (No. 2) Act, 2020 by collecting or demanding payment of the minimum Tax pending hearing and determination of this petition”, ruled Odunga.

The judge noted that the Amendment introduces Minimum Tax in Kenya for the first time, hence the Respondents (KRA) can hold off on its implementation for the limited period of determination of the petition.

He said the suspension of the law will not occasion a lacuna in the operations or governance structure which, if left unfilled, even for a short while is likely to cause very grave consequences to the general populace.

Stanley Waweru, Samwel Gitonga and Bernard Oranga, who are officials of Kitengela Bar Owners Association sued KRA, National Assembly and the Attorney General challenging the introduction of Minimum Tax at the rate of 1% of the gross turnover effective January 1,2021.

They are bar owners are based in Kitengela, Isinya, Athi River and Mavoko in Kajiado and Machakos counties.

Minimum Tax was assented by President Kenyatta last June after Parliament amended the Finance Act, 2020 by amending Income Tax Act (ITA) and introduced a new Section 12D which provided the Minimum Tax at the rate of 1 per cent of the gross turnover, from January 2021.

KRA later published “Guidelines on Minimum Tax”, which defines Gross Turnover. Minimum Tax is based on gross turnover and not gains or profits, and all persons, even those in a loss-making position will be required to pay the tax.

The bar owners argued that the imminent enforcement of what they term as an unconstitutional, unlawful and devastating tax is a threat to their businesses.

STUDENTS SUE CLE OVER PLANS TO DELAY ADMISSION TO THE ROLL OF ADVOCATES.

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BY SAM ALFAN.

The High Court has suspended a decision by Council of Legal Education purporting to limit gazettement of qualified candidates for admission to the roll of advocates to four times a year.

Justice Jairus Ngaah quashed the decision by CLE published through a legal notice August 3, 2021, which seeks to have the gazettement to the months of March, June, September and December of every year.

The Judge also granted leave to students including Patroba Omwenga, Achieng Sheila and Justus Maeche permission to file an application seeking to compel Kenya School of Law to gazette all students who have qualified.

“I have considered the applicant’s application dated September 15, 2021 filled under certificate of urgency on even date. I am satisfied that the application is urgent and it is so certified. I am also persuaded that the applicant merits to file a substantive motion for judicial review of orders certiorari and mandemus. Leave is thus granted interms of prayers (2) and (3). Leave shall operate as stay of prayer 4,” Judge Ngaah ruled.

The students moved to court seeking to compel CLE to gazette all students whose names have been cleared by KSL.

The trio argued that CLE failed to take all relevant considerations into account in the publication and therefore lack legal basis.

“CLE has acted in bad faith in their decision to gazette qualified candidates only on specific months during the year and this decision of the CLE has introduced a new and unlawful hurdle or requirement which is contrary to the applicant’s right to be admitted to the bar upon qualification,” the trio added.

They contends that the notice offends their legitimate expectation to be admitted to the bar upon qualifying for admission under the provisions of the Advocates Act, as they were denied a reasonable opportunity to state their case.

They further add that some of the lawyers awaiting admission will have to wait for extra periods of more than four months without being gazetted, even after qualifying for admission.

“There is no rational connection between the decision in General Notice No. 13 of 2021, the purpose for which it was taken and reasons given by CLE,” they adds.

‘NTAKUFINYA’ MAN SUES OVER USE OF HIS IMAGE AND BUZZWORD WITHOUT CONSENT.

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BY SAM ALFAN.

Aron Asiba Matendechere who shot into fame for his “Ntakufinya” phrase has sued three corporates for using his image and buzzword without his consent.

Asiba further wants the court to stop Co-operative bank from using his identity, image, likeness and persona in their commercials with immediate effect.

“A conservatory order do issue to stop the respondent either by themselves, assigns, agents, representatives from using petitioner’s identity, image/likeness and persona in their commercials with immediate effect pending the hearing and determination of this petition”, he urges.

In the petition, Asiba wants the court to also order the bank to pull down various commercials posted in various social spaces with immediate effect.

He says in the petition that on July 5 and July 22 this year 2021 the bank posted on Facebook and Instagram respectively, a recreated image of his, both bearing username – Co-op Bank Kenya.

Asiba says the post was published with the intention to attract wide readership and boost its sales.

The post was titled “banker akiona loan defaulter akikula kuku tao” under the hashtag #weareyou and bore his recreated image, likeness and persona.

“On a reasonable man’s view, it is clear that the actions of the respondent as highlighted above are an utter infringement on the fundamental freedoms and rights of the Applicant. It is settled that for one’s image, likeness or persona to appear on such advertisement the Applicant should have consented”, he adds.

He argues that the bank should have sought his consent before using his image to advertise their products and boost sales.

He further says he should have been sufficiently paid by bank to enable him waive his privacy and dignity at the expense of the lender’s commercial gain and it is his position before the eyes of the society and that he has been contracted or on salary to offer modelling services.

LAWYER MOVES TO COURT OF MUCH DISCREDITED CBC SYSTEM.

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BY SAM ALFAN.

A lawyer has moved to court seeking to stop the Ministry of Education from further implementation of the Competency Based Curriculum (CBC), which parents across the country have complained of burdening them.

In the case before the High Court, the lawyer as also sued Kenya Institute of Curriculum Development, Kenya examination Council and Teachers Service Commission.

Lawyer Esther Ang’awa wants the Court to stop the government to stop CBC saying it has been rolled out unlawfully.

The lawyer argues that that the Ministry of Education has rolled out a curriculum for basic education purporting to phase out and replace the 8-4-4 system through sessional papers and policy instead of legislation.

She says there is no identifiable document or instrument upon which the CBC curriculum can be traced as one developed in the manner set out in section 73 and 74 of the Basic Education Act NO. 14 2013 as read together with section 4 of the KICD Act.

Angawa claims that the government has undertaken the unlawful action enumerated by publishing learning materials without any curriculum having been developed in accordance with the constitution.

She contends that the CBC curriculum has sought to impose an economic burden of procuring courses books, learning material among other school items.

The lawyer further argues that the curriculum used in the 8:4:4 system and structure of education has been changed and replaced over the years as when neeed arises.

CBC was rolled out through the Basic education curriculum framework, 2017 and seasonal paper No. 1 of 2019 on policy framework for reforming education and Training for sustainable development in Kenya.

It was brought to replace 8:4:4 system, which has been in place since 1985.

The lawyer said the constitution of Kenya 2010 entrenched the right to education, the right to free compulsory bacic for children and youth to access relevant education and training for purpose of employment and empowerment.

She wants the petition sent to the Chief Justice for appointment of an uneven number of judges to hear and determine the issues raised.

PROPRIETORS OF PRIDEINN HOTEL NOW SUE DPP SEEKING SH100 MILLION.

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BY SAM ALFAN.

The owners of PrideInn hotel have now sued Director of Public Prosecution Noordin Haji and Directorate of Criminal Investigations seeking compensation of Sh100 million over unlawful charges and violation of their rights.

Mohamed Shabbir Kassam Nooran and his son Mohamed Hasnain Shabbir and PrideInn hotel wants the court to direct the government to pay them Sh100 million damages over violation of their fundamental rights.

They also want the court to issue permanent injunction restraining DCI and DPP from commencing any fresh investigations, harassing, arresting and prosecuting them with respect to the dispute between them and the landlord BrookShill Crescent Investment ltd, which is pending before the High Court.

Father and son also want the high court to quash the charges brought against them of theft and malicious damage to property.

“An order of prohibition do issue restraining Directorate of Criminal Investigations and Director of Public Prosecution from further arresting and preferring any charged against 2rd petitioner as preferred against 1st petitioner in MCCR No. E923 of 2021 or any other charges on the same facts arising from the complaint BrookShill Crescent Investment ltd vs PrideInn Hotel & Investment ltd or its directors”, the urged.

The two further urge court to declare search conducted by officers from the DCI and the seizure of the PrideInn Hotel furniture from their go down and stores along Serena road in Mombasa was unconstitutional, unlawful, null and void.

It is their argument that the arraignment was abuse of office by DPP and their arrest and prosecution in the respect of compliant by BrookShill Crescent Investment ltd managing Director Imran Abdul Salaam which is a subject of a civil suit amounts to double jeopardy as well as abuse of court process.

They are also seeking declaration that the detention of Noorani between August 24 to 25 was violation of his constitutional rights.

PrideInn days it was a teenant of BrookShill Crescent Investment ltd on Raphta Road, Nairobi for five years and three months from November 2,2009 to February 2,2015 and parties signed a sub-lease for further five years and three months. The renewed sub-lease was to lapse on April 30 last year.

According to the hotel, during the time of the second sub-lease agreement Salaam(complainant) agreed to renovate the demised premises on the terms set out in the agreement dated January 10,2015 on an understanding that Salaam would vary the rent upwards.

“The new terms were registered through the Deed of Variation dated September 2,2015 but registered on July 19,2016. The Petitioners company on the other hand took care of the fixtures, fitting and furniture on its accord as the same were not provided for in the Deed of Variation “, they adds.

They adds that the complaint only paid for renovation of the demised premises which work was unfdrtaken by vishnu builders and developers limited and all the money remitted by the complainant was acvounted for as the same was paid to the contractor.

PrideInn purchased all thr furniture, fixtures and fitting for the leased premises to enable it carry on the business as hotel operator.

The hotel further adds thst upon the lapse of sub-lease, the complaint them to hold the hotel on its behalf for May and June, 2020 during which period there were several correspondences that affirmed fixtures, fitting and the furniture belonged to them.

DPP WANTS SK MACHARIA’S BID TO PRIVATELY PROSECUTE 14 DIRECTORS QUASHED.

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BY SAM ALFAN.

Royal Media owner S.K Macharia has been dealt a blow by Director of Public Prosecution Noordin Haji who has opposed his bid to privately prosecute 14 directors of underwriter Directline Assurance.

In an application before a Nairobi court, Haji opposed the media mogul’s bid saying the alleged claim is civil in nature and Macharia ought to pursue his case in a civil court.

Haji further wants the court to dismiss Macharia’s case “in totality to safeguard the constitution, uphold the rule of law and preserve the public interest”.

While replying to Macharia’s application, the DPP through Senior Prosecution Celestine Oluoch told the court that after analyzing the evidence he established that the two enquiries 114 of 2019 and 258 of 2020 are civil in nature as they relate to ownership and directorship of Directline Assurance Company.

“There was no criminal culpability on the part of those recommended for Prosecution”, added the DPP.

The prosecutor added that in inquiry file 114 of 2019, relates to shareholding that arose after the death of the main shareholder John Gichia Macharia held by his company AKM Investment were subject to pending civil suits.

He said that in HCCC E277 of 2019 (DLAC vs Samuel Kamau Macharia & 3 others), is between the shareholders and directors of DLAC and their disputes relates to management and the control of DLAC.

“The defendants Dr. S. K Macharia and others are alleged to have attempted to unlawfully take control of DLAC. The issues are therefore exactly the same as in the first inquiry which dealt with allegations of” fraudulent transfer of shareholding” Prosecution told the court.

According to the DPP, the offences complained of are alleged to have been committed in the year 2012 but reported in the year 2018 after the death of Macharia’s son.

The DPP told the court that the issues in contention were directorship and shareholding of Directline Assurance Company (DLAC) which matters are not mandate of his of his office and delving into the will be misuse of office.

DPP further adds that regarding inquiry file No. 258 of 2020, is on the issue of stealing by directors which is tied on the issue of directorship and the evidence before him did not establish culpability and there was no evidence to support the allegations of stealing by the twelve directors.

He adds that evidence in the inquiry file disclosed that most of the transactions complained of were authorized by late John Gichia Macharia who was the majority shareholder and forensic audit report by Price Watercoopers (PWC) did not establish the allegations complained of.

“The forensic audit report by Ernst and Young (E&Y) submitted by the DCI did not establish stealing and the allegations complained of was not established by the evidence provided in the inquiry file to support recommended charges.

Macharia through lawyer Gibsom Kamau Kuria filed an application before Magistrate court accusing DPP Haji of failing to prosecute the 14 directors despite overwhelmined evidence against them collected by the Director of Criminal Investigations.

He filed the application alongside Royal Media Services, Royal Credit Limited and Directline Assurance.

Proposed accused persons are Janice Teresa Wanjiru Kiarie, Victor Blasco Wijenje, Janus Ltd, Harbor Capital Ltd, Kevin McCourt, Sure Invest Ltd, James Gacoka, Triad Networks Ltd, Gordon Radier Were, AKM Investments Ltd, Stenny Investments Ltd, John Maonga, and Enid Muriuki.

DCI AND ATPU OFFICERS TO BENEFIT FROM EU TRAINING.

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BY SAM ALFAN.

The Directorate of Criminal Investigations and Anti-Terror Police Unit will benefit from a counter-terrorism training program developed by the European Union.

Representatives from Spanish Police who are spearheading the program led by the project director Javier Hernandez, met the DCI director George Kinoti today at the headquarters to discuss the finer details of the program.

Kinoti acknowledged the importance of developing the skills of the officers, to respond to modern day security challenges.

Kenya Directorate of Criminal Investigations Anti-Terror police Unit at Milimani Law Courts in Nairobi /PHOTO BY S. A. N.

The chief sleuth further noted that the training couldn’t have come at a better time, since violent extremists have taken advantage of the increasingly globalized world.

The first batch of officers to receive the training will leave the country in November for Spain, according to the organisers.

Kenya through ATPU continues to rid terror elements and its activities in the country.

Kenya security agencies have thwarted several attempted attacks by Somalia based militia Al Shabaab.

Kenya Government has invested heavily to protect its citizens from terrorism attacks.

WITNESS TELLS COURT HOW MP OIMEKE ASKED FOR BRIBE.

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BY SAM ALFAN.

A Nairobi court has heard that Bonchari Member of Parliament Robert Pavel Oimeke demanded a bribe of Sh500, 000 from petrol station owner through social media.

Testifying before the Anti-Corruption Magistrate Peter Ooko, the complainant Wycliffe Odhiambo Oyoo said he negotiated with the MP, then the Energy Regulatory Authority Director General, to Sh200,000.

The witness said he then reported the matter to the Ethics and Anti-Corruption Commission, where he was given treated money which he took to the legislator.

Oyoo,presented the money he handed to Oimeke on December 2 last year.

The charges against Oimeke stated that on December 10, last year being EPRA boss, he asked for a Sh500,000 bribe from Wycliffe Odhiambo Oyoo.

The witness said the message, asking for the bribe was sent through WhatsApp and the amount asked were for purposes of authorising the re-opening of Nyang’inja Filling station in Oyugis in Homa Bay County.

The prosecution told the court that on December 10, Oimeke received a bribe of Sh200,000 from Oyoo so that he could authorize the unsealing and opening of the said petrol station.

The legislator is out after depositing cash bail of Sh200,000 in court to secure his release.